Clear & Convincing

Property Division


Author: Jeff Anderson

Burden of proof is the standard by which an issue must be proven in Court for the Judge to rule in one’s favor. For instance, in crime shows, you might have heard that the prosecution must prove their case beyond a reasonable doubt.

In most circumstances of family law, the burden of proof is a preponderance of the evidence. It’s a balancing test. That means the Court must be persuaded ever so slightly to one side or the other. If the Judge finds that the evidence weights just a little bit on the side of the husband’s or the wife’s case, then that issue will be decided in favor of that person.

Clear and convincing evidence is a burden of proof which is higher than just a preponderance and it comes up regularly in divorces. Texas law favors the community estate over the separate estate of either the husband or the wife. All ties, and even close calls, go to the community. If an asset is found to belong to the community estate, it will be divided in a just and right (or fair) manner. If, on the other hand, the item is found to belong to the separate estate of the husband or wife, it will not be divided. Instead, it will be found to belong to that person and will not be divided.

Unless one of the spouses proves by clear and convincing evidence that the item is his or her separate property, the Court will find it to be community property and divide it appropriately.

Clear and convincing does not mean beyond any shadow of a doubt. If that were the case, one could almost always envision a circumstance where that shadow of a doubt could exist, particularly after years of marriage.

For instance, let’s say the wife owns a car prior to marriage. The marriage lasts for two years and she still has the car. So long as she can show that the car was hers before the wedding, perhaps with a title or purchase documentation, the car will almost certainly be found to be her separate property.

Another common example are is a bank account. If the husband had $200,000 in an account prior to the marriage and never touched that money, he will want to show that it is his separate property. The best way to clearly and convincingly prove the money is his will likely be to get all of the bank statements for that account starting prior to the wedding and continuing up to the date of the divorce. As each monthly statement shows no withdrawals and no deposits of community money, there will be little doubt that the original $200,000 is his separate property.

These two examples are simple. Reality is rarely so easy. If the car was sold and another one bought, it becomes more complicated to trace the wife’s interest in the car. If the husband moved his money to another account, added community money, spent part of it or set it up to accrue interest, proving that it is his separate property clearly and convincingly becomes more and more difficult. As the facts become more convoluted, the more experienced and skilled the attorney should be to unravel the transactions to meet that clear and convincing standard.